In a meeting with a group of mediators last night, one mediator told us that he believes it is important to suggest to the parties what he believes would be a “fair” settlement amount. Most of the rest of us were skeptical of this approach. Someone pointed out that the mediator often doesn’t have enough information to determine what a fair settlement might be, as sometimes one or both of the parties is withholding information that could materially affect the outcome. Others suggested that it is not the mediator’s job to try to arrive at an objectively “fair” result, only a result that is satisfactory to the parties. I think it can also interfere with a mediator’s effectiveness to attempt […]

To help my kids with a school mock trial project, we’ve been showing them some classic trial movies, such as Inherit the Wind, A Few Good Men, The Verdict, and of course, My Cousin Vinny. These movies not only illustrate some good trial techniques, they also remind us of how much we enjoy watching the drama of trials. Stories such as these depend on conflict and its resolution captured in a trial. Conflict being deemed essential to a good story, it is only natural that the movies generally avoid telling stories of people peacefully resolving their differences. But some of these movies go even further, by depicting settlement as illegitimate or even evil. In A Few Good Men, Tom Cruise […]

Mediators will sometimes tell the parties that the measure of whether a proposed settlement is fair is that it should make both sides equally unhappy. In other words, a party accepting less (or paying more) than they think they should is supposed to be consoled by the fact that the other side feels exactly the same way. I think this is a very negative way of looking at settlement. I tell the parties in a mediation exactly the opposite. I tell them that if they think they will be better off rejecting the settlement and taking their case to trial, by all means they should do that. No one should accept a settlement that makes them worse off than the […]

Joseph C. Markowitz

Joseph C. Markowitz has published this blog, focusing on mediation and other forms of conflict resolution, since 2009. Mr. Markowitz practices law under the name "Law Offices of Joseph C. Markowitz," sharing space with three other attorneys in downtown Los Angeles. He has been in practice since 1980, emphasizing employment law, intellectual property, and general business disputes. Mr. Markowitz was trained as a mediator in 1994, and has served on one state court and two federal court mediation panels, in addition to handling private mediations. He also served as president of the Southern California Mediation Association in 2014.

For more information about Mr. Markowitz’s law and dispute resolution practice, go to jcmarkowitz.com